RIAA Lawyers Trying To Rewrite History Of Copyright Clause Through Shoddy Scholarship And Selective Quotation

from the must-pay-well dept

Over the last week or so, I've seen a number of folks in the usual crowd of copyright maximalists cheering on a new "paper" put forth by a group hilariously calling itself the Center for Individual Freedom, supposedly trying to establish the "constitutional and historical foundations of copyright protection." The "paper" (and I use that term loosely) itself does no such thing. It's a one-sided polemic about why copyright is property -- argued by selectively quoting a few historical claims, often out of context, and ignoring everything else. The six page document (quick read) was actually written by three lawyers... who admit that they work for the RIAA. The basic argument is that copyright is a "natural right," and that this idea was well established at the time of the Constitution. The framing, then, is that all the Constitution was really doing was codifying a natural right that all agreed was akin to property, and that this right cannot and should not be diminished or taken away.

To do this, the authors rely, almost exclusively, on some arguments that John Locke made. This is the go to move of copyright maximalists. Because John Locke argued that property rights were established as a result of one's labor, and thus a "natural right", and some of the founders were influenced by John Locke, voila, copyright was meant to be given as a natural right. As the paper notes:

The foundational premise of Locke's theory
is that all people have a natural right of property
in their own bodies. Because people own
their bodies, Locke reasoned that they also
owned the labor of their bodies and, by extension, the fruits of that labor.
When an individual catches a fish in a stream, he has a
right to keep that fish because but-for his efforts,
the fish would not have been caught. For the
same reason, an author has a right to his works
because his efforts made the work possible. Under Locke’s view, "[o]ur
handiwork becomes our property because our hands—and the energy, consciousness, and control that fuel their labor--are our property."

That is, "a
person rightly claims ownership in her works to the extent that her labor
resulted in their existence." If anything, under Locke's theory, intellectual property should be even
more worthy of protection than physical property. Land and natural
resources are pre-existing and finite, and one person's acquisition of a piece
of tangible property may reduce the "common" that is available to others.
Not so with tangible expressions: the field of creative works is infinite, and
one person's expression of an idea does not meaningfully deplete the opportunities available to others; indeed, it expands the size of the "pie" by
providing inspiration to others. Moreover, while tangible property such as
land and chattel is often pre-existing and acquired through mere happenstance of birth, intellectual property flows directly from its creator and is
essentially the "propertization of talent"--that is, "a reward, an empowering
instrument, for the talented upstarts" in a society.

Nearly all of this is misleading or out of context. Or just wrong. The idea that Locke was arguing that mere labor alone creates a property right is just silly. As Stephan Kinsella pointed out years ago, this argument makes little sense the more you think about it, as Kinsella demonstrates by talking about who owns a loaf of bread:

But creation of the loaf is not the reason why the baker owns it. He owns the loaf because he owned the dough that he baked. He already owned the dough, before any act of "creation"--before he transformed it with his labor. If he owned the dough, then he owns whatever he transforms his property into; the act of creation is an act of transformation that does not generate any new property rights. So creation is not necessary for him to own the resulting baked bread. Likewise, if he used someone else's dough--say, his employer's--then he does not own the loaf, but the owner of the dough does. So creation is not sufficient for ownership.

Creation is not sufficient for ownership. That should be obvious, but for some reason the paper assumes that it must be so.

Oh, and Locke actually had much more mixed feelings on copyright. As some have pointed out, back in Locke's time, there was the precursor to copyright, known as The Stationers' Company monopoly, which more or less later morphed into the Statute of Anne (the basis for much of modern copyright). Locke's opinion on the Stationer's Company Monopoly? Not good at all. He argued vehemently against it, and is widely credited by some for it not being renewed. While he did support some of the ideas that were discussed for the eventual Statute of Anne, many of his ideas were actually rejected when that bill came around. As has been noted elsewhere, the Parliament explicitly rejected an earlier version of the Statute of Anne that referred to it as a property right (which also made it unlimited), completely changing the text to note that it was for the promotion of learning.

The central plank of the 1710 Act was then, and remains, a cultural quid pro quo. Parliament, to encourage "learned Men to compose and write useful Books", provided a guaranteed, if finite, right to print and reprint those works so composed. The legislators were not concerned with the recognition of any pre-existing authorial right, nor were they solely interested in the regulation of the bookseller's market.

And yet, the RIAA laywers make a big stink about Locke's impact on the Statute of Anne. They ignore that many of his ideas were rejected by Parliament, and instead pretend that he more or less wrote the damn thing.

In the 1690s, Parliament refused to renew
the Stationers’ Company’s printing monopoly, and authors and booksellers in the
newly competitive industry began pressing
for formal protection for their works. Although he strongly opposed the
Stationers’ Company’s monopoly, John Locke himself described literary
publications as “property” and argued in a 1694 letter to Parliament that
formal publishing rights should last for the life of the author plus seventy
years.

In 1710, Parliament enacted the Statute of Anne, which formally
granted authors of existing works a 21-year exclusive publication right
and authors of new works a renewable 14-year exclusive right.

Yes, because during the debate over what to do about this, Locke referred to publishing rights (not copyright, by the way) as property, these lawyers claim it was a key basis for copyright. Except... they leave out the part where Parliament rejected most of Locke's suggestions and went in a different direction. It's the details like this that matter.

Furthermore, much of the argument in the paper is that Locke believe copyright is some sort of "natural right," rather than a utilitarian issue (i.e., for the betterment of society). And yet, when you look at all of Locke's comments on the matter, even when he's making what appears to be a natural rights argument, it's really a utilitarian argument in disguise. The RIAA lawyers accidentally make that very point when they argue that Locke would have supported copyright more than traditional property (while ignoring the fact that he quite obviously did not) because it would "increase the pie." But, of course, increasing the pie is a utilitarian argument. Which is exactly what Locke was making when it came to such works, contrary to the claims of the authors of the paper.

The paper then makes the further leap that since the US's Copyright Clause had similarities to the Statute of Anne, that the founders also believed wholeheartedly in the (already not really accurate) idea that he thought copyright was property. Derek Bambauer, in talking about just how inaccurate and ridiculous the RIAA paper is, reminds us of Dotan Oliar's incredibly detailed paper on the origins of the US Copyright Clause, which should be required reading for anyone arguing about this clause and what it actually means. As that paper shows in much more detail than anything the RIAA lawyers wrote, the RIAA's claims are, well, bunk. Oliar looks at the historical record of the various proposals put forth for the copyright clause, and notes that Congress explicitly rejected the ones that were more based on a "natural rights" or "property rights" view, and like the English Parliament before them, chose instead to support a limited bill for the purpose of promoting progress, rather than any sort of property right.

Specifically, the study of the Convention’s record provides three indications
that the Framers intended the Progress Clause as a limitation on Congress’s
intellectual property power. First, Madison and Pinckney’s initial proposals to
vest patent and copyright powers in Congress were plenary and did not include
language relating to the promotion of progress in science and useful arts. Had the Framers been content with such plenary patent and copyright powers, they
would have likely adopted them as proposed. The Framers’ choice not to adopt
the plenary proposals, but rather to subject their exercise to specific ends, tends
to prove that the Progress Clause was added as a limitation.

That paper, unlike the RIAA paper, is quite detailed and thorough (and actually acknowledges the views of those who have argued otherwise, before explaining why the evidence suggests they're wrong). Reading through the details there, you're left with a pretty convincing case that the majority of framers of the Constitution were not looking to secure some sort of "natural right" or "property right," but to explicitly to use the "promote the progress" clause to limit Congress' ability to do damage with copyrights and patents. Yes, there were some who viewed copyright as a natural rights issue, but it is clearly not the majority, or else they wouldn't have rejected putting such language forward. Besides, the fact that in a large group of politicians, you can find a few to make a crazy argument does not mean that the entire body agreed with those views. Can you imagine what these lawyers must think of Congress? One Rep suggests raising taxes and they must think that, clearly, the entire country supports raising taxes. Because that seems to be the only way their argument in this paper makes any sense.

The RIAA paper also brings up the UN's declaration on human rights, arguing that its Article 27 shows that it is a widespread belief that copyright is a natural property right. Except, as we've discussed in great detail, this is not what the declaration on human rights actually says. Not only does that same clause argue that "everyone has the right to freely participate in the cultural life of the community, to enjoy the arts," but official commentary and associated declarations also, explicitly, note that the rights being discussed do not equate to copyright and should not be equated with copyright. Not surprisingly, the RIAA paper ignores all of that.

It also ignores some key US cases, which flatly reject this idea, including the 1834 decision in Wheaton v. Peters -- considered the first real copyright case in the Supreme Court, in which the Supreme Court comes down pretty firmly against the idea of copyright as a natural right, and establishes that it is a creature purely of statute. In fact, the court there refers back to the Statute of Anne as well, and notes that there, too, they have rejected the natural rights argument for copyright.

No such right at the common law had been recognized in England, when the colony of Penn was organized. Long afterwards, literary property became a subject of controversy, but the question was involved in great doubt and perplexity; and a little more than a century ago, it was decided by the highest judicial court in England, that the right of authors could not be asserted at common law, but under the statute. The statute of Anne was passed in 1710.

The court then went much further in noting that the Constitution explicitly presents limits on copyright, and there is no evidence that it was establishing the recognition of a natural right:

That congress, in passing the act of 1790, did not legislate in reference to existing rights, appears clear, from the provision that the author, &c. "shall have the sole right and liberty of printing," &c. Now if this exclusive right existed at common law, and congress were about to adopt legislative provisions for its protection, would they have used this language? Could they have deemed it necessary to vest a right already vested. Such a presumption is refuted by the words above quoted, and their force is not lessened by any other part of the act.

Congress, then, by this act, instead of sanctioning an existing right, as contended for, created it. This seems to be the clear import of the law, connected with the circumstances under which it was enacted.

This case is widely known to copyright scholars. It seems rather stunning that these RIAA lawyers (or the CFIF, which published the paper) would be ignorant of it. Thus, it's not difficult to conclude from all of this that the authors of the paper did not undertake a scholarly look at whether or not copyright was long viewed as a natural right and thus, as property, but rather that they cherry picked a few quotes out of context, and then pretended those quotes had much more impact than they really did.

And that's why it's good to have loons and trolls saying nonsense (although they could be more sensible and give us a break for some time). They often result in articles like this one that end up enriching and informing more than the misinformation the original trolling material tried to spread.

I think perhaps you're misunderstanding the discussion of Donaldson v. Beckett in Wheaton. The Wheaton Court notes that a majority of the House of Lords in Donaldson acknowledged that there was in fact common law copyright, but then they held that those rights were preempted by the Statute of Anne. From Wheaton:

This question was brought before the house of lords, in the case of Donaldson v. Beckett and others, reported in 4 Burr. 2408.

Lord Mansfield, being a peer, through feelings of delicacy, declined giving any opinion. The eleven judges gave their opinions on the following points.

1st. Whether at common law an author of any book or literary composition, had the sole right of first printing, and publishing the same for sale; and might bring an action against any person who printed, published and sold the same, without his consent. On this question there were eight judges in the affirmative, and three in the negative.

2d. If the author had such right originally, did the law take it away, upon his printing and publishing such book or literary composition; and might any person, afterward, reprint and sell, for his own benefit, such book or literary composition, against the will of the author. This question was answered in the affirmative, by four judges, and in the negative by seven.

3d. If such action would have lain, at common law, is it taken away by the statute of 8 Anne; and is an author, by *656 the said statute, precluded from every remedy, except on the foundation of the said statute, and on the terms of the conditions prescribed thereby. Six of the judges, to five, decided that the remedy must be under the statute.

4th. Whether the author of any literary composition, and his assigns, had the sole right of printing and publishing the same in perpetuity, by the common law. Which question was decided in favour of the author, by seven judges to four.

5th. Whether this right is any way impeached, restrained or taken away, by the statute 8 Anne? Six, to five judges, decided that the right is taken away by the statute. And the lord chancellor, seconding Lord Camden's motion to reverse, the decree was reversed.

It would appear from the points decided, that a majority of the judges were in favour of the common law right of authors, but that the same had been taken away by the statute.

Wheaton v. Peters, 33 U.S. 591, 655-56 (1834).

So the part you're missing is that the House of Lords acknowledged that there was in fact a natural right to copyright. That natural right was superseded by statute, but that's not the point. The point is that but for the Statute of Anne, the House of Lords recognized that authors had natural rights to the fruits of their intellectual labor.

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Did you not read the part where Stephen Kinsella debunked that claim?

" But creation of the loaf is not the reason why the baker owns it. He owns the loaf because he owned the dough that he baked. He already owned the dough, before any act of "creation"--before he transformed it with his labor. If he owned the dough, then he owns whatever he transforms his property into; the act of creation is an act of transformation that does not generate any new property rights. So creation is not necessary for him to own the resulting baked bread. Likewise, if he used someone else's dough--say, his employer's--then he does not own the loaf, but the owner of the dough does. So creation is not sufficient for ownership."

"the House of Lords, in line with the majority of the law lords who spoke to the issue, rejected the argument in favour of common law copyright, but that the significance of this decision was nevertheless obscured as a result of the manner in which the opinions of the judges and the law lords was subsequently recorded and reported."

Bootstraps!

Further to this point, the same site contains the following useful point:

The reason for this particular confusion lies in the fact that the Lord Chancellor's first question, as to whether an author had the "right of first printing and publishing" his work at common law, can be read in two different ways. The first presupposes the existence of copyright, as an intangible property right, at common law - that is, a right to publish and re-publish one's work to the exclusion of all others. The second, however, relates to the existence of a right at common law which flows from the ownership of the physical object, the manuscript - in this case, a right of first publication (in essence, a right to divulge) and nothing more.

That is - in order to show that the Lords believed copyright already existed you need to assume that people generally accepted that copyright already existed - in other words the copyright argument is pulling itself up by its own bootstraps.

The right to first divulge, on the other hand is generally accepted- even Crosbie Fitch accepts that!

Re: Bootstraps!

I appreciate the cite, and I will read what Deazley says. I've been wondering about this stuff since that 6-page paper came out, so I'm glad Mike is talking about it as well. I'm actually reading Millar v. Taylor now, and I plan to read Donaldson next. I may read Deazley first though so I'm better prepared for Donaldson. Thanks again.

Re: Bootstraps!

Indeed.

And I blogged a response to Bambauer (he hasn't 'yet' published my comment on his article):

Derek Bambauer suggests the cartel’s attempt to frame copyright as ‘a natural right to be secured’ is greenwashing. I suggest it is because they’ve recognised I have a point – the US Constitution did not empower the granting of a privilege. See my argument with Karl

The US Constitution empowers Congress to SECURE the author’s (“solemnly adjudged to be a common law”) right to exclude others from their writings for limited times.

In 1787, in the New World and Old, most of those in the publishing industry were kidding themselves that a reproduction monopoly was a natural right and that the Statute of Anne (and various states’ legislative imitations) was a paltry legal recognition thereof. This is why James Madison (despite Jefferson’s suggestion to explicitly empower the granting of monopolies) knew he only needed to empower Congress to secure a right, in order to grant the monopoly of copyright.

By legislating the first US copyright act (Statute of Anne with minor edits) in 1790, most of those interested would accept this as the securing of a natural right (despite the fact that Madison & Jefferson knew damn well that copyright was the granting of a monopoly, not the securing of a right) – “That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed”.

Madison (who wanted copyright enacted) knew that a clause empowering Congress to grant monopolies would not have been ratified, hence his insertion of a clause that ‘secured a right’ – a pre-existing right (“endowed by their Creator with certain unalienable Rights”).

The point is, although the clause was APPARENTLY sufficient to enable Madison/Congress to grant copyright (by way of securing a common law right as others would assume) it was not ACTUALLY sufficient. Copyright is the grant of a monopoly and not at all law that secures a common law right.

So, Congress did not have power to grant copyright. It only had power to secure an author’s natural right to exclude others from their writings, i.e. our physical power to exclude burglars from copying our writings, such as our memoirs in our desk drawers (a natural right) – not to exclude those who purchase copies of those memoirs from us, from making and distributing their own copies (a privilege).

So, the cartel, conceding that the US Constitution empowered only the securing of a natural right, must now pretend that a reproduction monopoly is a natural right. And like James Madison, they will lead their audience to believe this without actually asserting it.

"the House of Lords, in line with the majority of the law lords who spoke to the issue, rejected the argument in favour of common law copyright, but that the significance of this decision was nevertheless obscured as a result of the manner in which the opinions of the judges and the law lords was subsequently recorded and reported."

I'm not misreading the British Constitution. Perhaps the Supreme Court was. I'm just quoting what was said in Wheaton. There it says that a majority of the Lords held that there was in fact common law copyright but that it was then later superseded by statute. I understand that you're saying that it was the Law Lords and not the whole House of Lords and that perhaps the House of Lords said something different. I'll have to read through the materials there to see. I'm not very well versed in appellate procedures of 18th century England, and perhaps neither was the Supreme Court. That might explain the error if there was one.

Nonetheless, the fact remains that courts of equity were enjoining copying before there was statutory copyright. In my mind, that's the definition of common law copyright. The fact also remains that in the U.S. there was also common law copyright in the states--as there still is to this day.

As others already said which you choose to ignore as usual

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The Wheaton Court notes that a majority of the House of Lords in Donaldson acknowledged that there was in fact common law copyright, but then they held that those rights were preempted by the Statute of Anne.

Except that this statement is itself incorrect.

The majority of the Law Lords voted this way - but the House of Lords voted the other way.

This was generally acknowledged at the time - even by the stationers company themselves. Just 6 days later they wrote

"[B]y a late solemn decision of the House of Peerssuch common law right of authors and their assigns hath been declared to have no existence, whereby your petitioners will be very great sufferers thro' their involuntary misapprehension of the law".

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The majority of the Law Lords voted this way - but the House of Lords voted the other way.

This was generally acknowledged at the time - even by the stationers company themselves. Just 6 days later they wrote

"[B]y a late solemn decision of the House of Peerssuch common law right of authors and their assigns hath been declared to have no existence, whereby your petitioners will be very great sufferers thro' their involuntary misapprehension of the law".

I read that quote as meaning that there was no common law copyright because it has been superseded by the Statute of Anne, which is what the Lords said in Donaldson (as reported by the Supreme Court in Wheaton). That's not contradictory.

Re:

So the part you're missing is that the House of Lords acknowledged that there was in fact a natural right to copyright. That natural right was superseded by statute, but that's not the point. The point is that but for the Statute of Anne, the House of Lords recognized that authors had natural rights to the fruits of their intellectual labor.

Richard is already debunking this claim, but even if your basic claim was accurate, it actually works against your argument. At best it shows that SOME people believed they were natural rights (and we all agree that some did), but that they were OVERRULED in the end by people saying there was no natural rights there.

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Richard is already debunking this claim, but even if your basic claim was accurate, it actually works against your argument. At best it shows that SOME people believed they were natural rights (and we all agree that some did), but that they were OVERRULED in the end by people saying there was no natural rights there.

You're still missing the point. The majority in Donaldson said there was common law copyright that was thereafter preempted by the Statute of Anne. You're trying to say that there was no common law copyright, i.e., that it's not natural. But that's not what they said in Donaldson.

The point is that there are natural rights in copyright that developed in the common law, but then later the statutes codified and preempted those rights. You are twisting this to mean that there is no natural right in copyright. That's not at all the case. There is a natural right. That right was protected at common law at first, and then later it was protected by statute.

In fact, the Supreme Court later on recognized that there is in fact common law copyright that is superseded by statute (contrary to what was said in Wheaton):

The right of an author, irrespective of statute, to his own productions and to a control of their publication, seems to have been recognized by the common law, but to have been so ill defined that from an early period legislation was adopted to regulate and limit such right. The earliest recognition of *85 this common-law right is to be found in the charter of the Stationers' Company, and certain decrees of the star chamber promulgated in 1556, 1585, 1623, and 1637, providing for licensing and regulating the manner of printing and the number of presses throughout the kingdom, and prohibiting the publication of unlicensed books. Indeed, the star chamber seems to have exercised the power of search, confiscation, and imprisonment without interruption from parliament, up to its abolition, in 1641. From this time the law seems to have been in an unsettled state-although parliament made some efforts to restrain the licentiousness of the press-until the eighth year of Queen Anne, when the first copyright act was passed, giving authors a monopoly in the publication of their works for a period of from 14 to 28 years. Notwithstanding this act, however, the chancery courts continued to hold that, by the common law and independently of legislation, there was a property of unlimited duration in printed books. This principle was affirmed so late as 1769 by the court of king's bench in the very carefully considered case of Millar v. Taylor, 4 Burrows, 2303, in which the right of the author of ‘Thompson's Seasons' to a monopoly of this work was asserted and sustained. But a few years thereafter the house of lords, upon an equal division of the judges, declared that the common-law right had been taken away by the statute of Anne, and that authors were limited in their monopoly by that act. Donaldson v. Becker, Id. 2408. This remains the law of England to the present day. An act similar in its provisions to the statute of Anne was enacted by congress in 1790, and the construction put upon the latter in Donaldson v. Becket was followed by this court in Wheaton v. Peters, 8 Pet. 591. While the propriety of these decisions has been the subject of a good deal of controversy among legal writers, it seems now to be considered the settled law of this country and England that the right of an author to a monopoly of his publications is measured and determined by the copyright act,-in other words, that, while a right did exist by common law, it has been superseded by statute.

Holmes v. Hurst, 174 U.S. 82, 84-85 (1899).

So there the Supreme Court says that there was common law copyright. The fact remains that the common law recognized copyright rights, and then later the statutory laws preempted much of those rights. That doesn't at all negate the fact that copyright is natural.

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I just have to mention -- you keep talking about common law as if it were synonymous with natural law. The two are often conflated, but they are different concepts. Just because something is recognized in common law does not mean it is a natural right. I'm not seeing how your arguments here are relevant to the debate.

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Just because something is recognized in common law does not mean it is a natural right.

The court in Wheaton was talking about "common law" as a synonym of "natural law." Later courts, however, seem to equate "common law" with "case law."

In any case, copyright is neither. The fact that Holmes v. Hurst talks about the Star Chamber and the Stationers' Monopoly should make this clear. Neither of these were "copyright" in the modern sense of the term - neither claimed (nor even suggested) that authors had either a natural or common-law right to a post-publication monopoly.

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The fact that Holmes v. Hurst talks about the Star Chamber and the Stationers' Monopoly should make this clear. Neither of these were "copyright" in the modern sense of the term - neither claimed (nor even suggested) that authors had either a natural or common-law right to a post-publication monopoly.

It's funny you say that because I got that Holmes case from Patry's treatise:

As in England, the question arose of whether the federal statute had replaced the common law as the exclusive mechanism for copyright protection. In Wheaton v. Peters, the first copyright case before the Supreme Court, this question, presented in Great Britain in Millar v. Taylor and Donaldson v. Beckett was faced. Although the Wheaton majority found, as had the House of Lords in construing the Statute of Anne, that the Copyright Act provided the exclusive mechanism for protection of published works, it did so not on the ground that the Copyright Act had “preempted” existing common law rights, but rather on the ground that there was no federal common law and thus such rights “originated, if at all, under the acts of Congress.” This holding was controversial among legal writers, and subsequently the Supreme Court [in Holmes v. Hurst], noting the controversy over the “propriety” of Wheaton's holding, wrote “while a right did exist by common law, it has been superseded by statute.”

1 Patry on Copyright § 1:19.

So the Supreme Court in Holmes took back what it said earlier in Wheaton about the nonexistence of common law copyright. It's not clear to me whether that's referring to state or federal common law, but nonetheless the Court did change their story on the point.

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No, copyright isn't natural at all. However, the aspect of it that is natural is the part whereby it has to potential to extend recognition of the origin.

However, even if you believe that to be correct, the vast majority of our collected culture is derived from other pieces of culture. Take, for example, archaeology. If things haven't been catalogued by location, etcetera, then the cultural perceptions we have as a result are useless.

The major thing about Perceptional Properties, such as copyright, is that if it didn't exist, there would be no physical harm that could be proven. With Perceptional Property laws, there is provable harm as they stand today.

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"The major thing about Perceptional Properties, such as copyright, is that if it didn't exist, there would be no physical harm that could be proven. With Perceptional Property laws, there is provable harm"

What physical harm did you have in mind?
Please provide some examples/citations of "provable" "physical" harm.

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How many times do I have to tell you??

I'm quoting what the Supreme Court said in Wheaton. I quoted the exact text and it says what I'm saying it says. I understand that some professor wrote something a couple of years ago that you think says something else. I will read it, as I said.

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Wheaton was already 60 years after the House of Lords decision - so it is not surprising that they got it wrong - howeverin the same year as the decision on the representatives of the stationers' company put managed to get a bill introduced into the commons, the preamble to which included the words "lately been adjudged in the House of Lords that no such copy right in authors or their assigns doth exist at common law". The attitude of people at the time (even those who had originally been pressing for common law copyright to be accepted) makes the nature of the decision quite clear.

Justice McLean delivered the majority opinion of the court relying upon Burrow's account of Donaldson in the process. Following an examination of the five questions, he continued that “[i]t would appear from the points decided, that a majority of the judges were in favour of the common law right of authors, but that the same had been taken away by the statute”

It quickly becomes clear why the opinions of the eleven speaking judges bear so much importance. It is not because they were decisive of the issue in Donaldson, but because they were later believed to represent an accurate summary of the collective opinion of the House itself.

But it is not clear to me in (re-)reading Mr Justice McLean's 1834 opinion that he then thought that courts of the United States of America ought to be in any way bound by a 1774 decision of the English House of Lords. Rather, it seems more clear to me that he consulted the English authorities for their pursuasive value.

That is to say, it is not clear to me that Mr Justice McLean was in any way at all concerned with the collective opinion of the House, or in their decision that “[t]he decree of the Court of Chancery was accordingly reversed”.

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What is natural? Ideas can only be truly owned if you do not express them. Once an idea is expressed whether in writing, by physical, verbal or other means, it is known to someone else and by natural law is no longer owned. You cannot "un-express" an idea. It is natural for ideas to spread and be used or else they remain exactly that, just thoughts buried in someone's mind. Once an idea has been expressed, it is impossible to stop people from sharing it because it is our nature and it is the nature of expression. While I appreciate the very thoughtful and well behaved comments you've made today, you are putting forth evidence based on a supposition, rather than making suppositions based on evidence.

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What is natural? Ideas can only be truly owned if you do not express them. Once an idea is expressed whether in writing, by physical, verbal or other means, it is known to someone else and by natural law is no longer owned. You cannot "un-express" an idea. It is natural for ideas to spread and be used or else they remain exactly that, just thoughts buried in someone's mind. Once an idea has been expressed, it is impossible to stop people from sharing it because it is our nature and it is the nature of expression. While I appreciate the very thoughtful and well behaved comments you've made today, you are putting forth evidence based on a supposition, rather than making suppositions based on evidence.

For something that is supposed to be a paper on the history and foundations of Copyright, I find it incredibly light on content. Basically, the paper asserts a number of things without providing a solid basis for those assertions.

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This approach also ignores the long history of written works that exited prior to the printing press, never mind the history of censorship between the start of printing and the statute of Anne.
Prior to the start of printing, only attribution of authors existed, as the copying of books was labour intensive, literally writing out a copy. Only the ultra rich, and the church could afford any books. The church was the major producer of books, and scientists, as it had the monks to carry out the copying of books.
Also note that University education was based on a religious education, and students had to copy any manuscripts they wished to keep a copy of.
The printing press upset the established order by making it possible to produce books at a more reasonable cost. Control over printing was attempted by both church and state because it threatened the established order. (does this sound familiar with respect to the internet and the more repressive regimes). Some countries established licences to produce copies, as a form of controlling the information that was made available. In England this was centred in the stationers company, who controlled what was printed on behalf of the crown. In effect the stationers controlled what work was printed as censors over authors.
When this censorship monopoly was removed, the stationers cam up with the idea of copyright so that they could continue to control printing. This right had little to do with paying authors, who were paid under the previous system, but was intended to allow the stationers to keep control over printing. That is all the fuss about the rights of authors was political spin, so that the stationer could regain some of their former monopoly, copyright limited the length of the monopoly, where the previous censorship regime did not limit the length of the monopoly, it was presumed to last forever.
Performance of music stayed outside of the copyright system until the player pianos threatened the income of sheet music publishers.
When recording came along John Philip Sousa said :-

These talking machines are going to ruin the artistic development of music in this country. When I was a boy...in front of every house in the summer evenings, you would find young people together singing the songs of the day or old songs. Today you hear these infernal machines going night and day. We will not have a vocal cord left. The vocal cord will be eliminated by a process of evolution, as was the tail of man when he came from the ape.

Re: Re:

Where do natural rights come from?

There are so such things as natural rights. It is survival of the fittest. You only get to have what you can take and keep from others. Any other right is just an artificial, man made concept. Or are you suggesting there is a higher power that grants us our rights?

"When an individual catches a fish in a stream, he has a right to keep that fish because but-for his efforts, the fish would not have been caught. For the same reason, an author has a right to his works because his efforts made the work possible. Under Locke’s view, "[o]ur handiwork becomes our property because our hands—and the energy, consciousness, and control that fuel their labor--are our property."

Okay, let's twist that around a little. Let's say I have a published book in front of me, and I also have pen and paper or a computer with a word processor program open. I then take the time and effort to rewrite/retype the book, word for word. I have done labour. I have exerted effort. Do I not own the resultant book? And what about if I employ a short-cut? Instead of manually re-typing every word, I just use Ctrl+C and Ctrl+V?

Re:

This is what I came here to point out. Let's say the RIAA lawyers' interpretation of Locke was correct. Fine, the creator has his work. Copyright infringement, whether it be wholesale copying or use in another work, mashup, transformation, etc, is copying, not taking. The creator still has his work, now someone else ALSO has it. Creator is not deprived of his property.

These lawyers and everyone else needs to get it through their heads. Copyright is not property. It's not even a right. It's a limitation of everyone else's rights to make copies. Copyright doesn't grant you anything, it takes something away from everyone else.

@ "But creation of the loaf is not the reason why the baker owns it."

This STUPID example starts with the flour already made! No mention of the farmer at all: as always with Mike's favored examples, real products just POP OUT OF THE AIR!

There was labor that went into farming, harvesting, and processing the flour. LABOR IS THE BASIS OF ALL WEALTH. You can dream up all the Twinkies (or IPADS) you want, but until those in the physical chain actually produce the goods, you've got bupkis.

Now, non-physical goods (the content) is produced by a more complex chain -- that I'm certainly not even going to attempt to outline to someone who thinks bread flour pops out of the air -- but it's still REAL ENOUGH to determine who OWNS it by the act of creating it.

Re: @ "But creation of the loaf is not the reason why the baker owns it."

Are you implying the farmer should get a cut of the sale of the loaf even after he has already been paid for the flour? Or most likely, he was paid for the wheat by a milling company, who milled the flour and then was paid by a distributor who then sold the flour to the baker. Should the farmer get a piece of each transaction? Why doesn't the farmer just set up his own mill, distributor and baker if he wants all the money?

Re: @ "But creation of the loaf is not the reason why the baker owns it."

Haha, what?

Okay, let's talk about the farmer. The milling of the grains is not why he owns the flour. The harvesting of the wheat is not why he owns the grains. The tending of the land is not why he owns the wheat.

At no point is a new property right formed by the act of transformation. It's always building on standard, existing property rights -- the land he bought, the seeds he bought -- just as it is with the baker and the flour he bought.

If the farmer hires someone to tend his wheat and turn it into flour, he doesn't forfeit ownership of it. If someone raids his crops and turns the wheat into flour themselves, they don't gain ownership by act of creation. Creation has nothing to do with it. Physical creation is just the rearrangement of existing physical property rights into forms that make them more valuable (or at least that's usually the goal).

Re: @ "But creation of the loaf is not the reason why the baker owns it."

The court then went much further in noting that the Constitution explicitly presents limits on copyright, and there is no evidence that it was establishing the recognition of a natural right:

That congress, in passing the act of 1790, did not legislate in reference to existing rights, appears clear, from the provision that the author, &c. "shall have the sole right and liberty of printing," &c. Now if this exclusive right existed at common law, and congress were about to adopt legislative provisions for its protection, would they have used this language? Could they have deemed it necessary to vest a right already vested. Such a presumption is refuted by the words above quoted, and their force is not lessened by any other part of the act.

Congress, then, by this act, instead of sanctioning an existing right, as contended for, created it. This seems to be the clear import of the law, connected with the circumstances under which it was enacted.

Another point I think you're missing is that the Supreme Court in Wheaton said there was no FEDERAL common law copyright. That's not that surprising since there was federal statutory copyright right from the start which would have preempted any such claim anyway. The Court did not say that there was no state common law copyright--which there in fact was and in fact still is in some states.

Re: Re:

State copyright claims have been trumped by federal copyright beginning in 1976.

The only rights preempted under 301(a) are those equivalent to the rights under 106 concerning works within federal copyright subject matter. You're right that many rights were preempted by the 1976 Act, but you're missing that some state-granted rights were not. I know that my state has copyright rights that were not preempted, and I believe that many if not all other states do as well.

Re:

The Court did not say that there was no state common law copyright--which there in fact was and in fact still is in some states.

Uh, no, they did say this, explicitly:

In the argument it was insisted, that no presumption could be drawn against the existence of the common law as to copyrights in Pennsylvania from the fact of its never having been asserted until the commencement of this suit.

If the common law, in all its provisions, has not been introduced into Pennsylvania, to what extent has it been adopted? Must not this Court have some evidence on this subject? If no right such as is set up by the complainants has heretofore been asserted, no custom or usage established, no judicial decision been given, can the conclusion be justified that by the common law of Pennsylvania, an author has a perpetual property in the copyright of his works?

These considerations might well lead the Court to doubt the existence of this law in Pennsylvania, but there are others of a more conclusive character.

The question respecting the literary property of authors was not made a subject of judicial investigation in England until 1760, and no decision was given until the case of Miller v. Taylor was decided in 1769. Long before this time, the Colony of Pennsylvania was settled. What part of the common law did Penn and his associates bring with them from England?

The literary property of authors as now asserted was then unknown in that country. Laws had been passed regulating the publication of new works under license. And the King, as the head of the church and the state, claimed the exclusive right of publishing the acts of Parliament, the book of common prayer, and a few other books.

No such right at the common law had been recognized in England when the colony of Penn was organized. Long afterwards, literary property became a subject of controversy, but the question was involved in great doubt and perplexity, and a little more than a century ago it was decided by the highest judicial court in England that the right of authors could not be asserted at common law, but under the statute. The statute of 8 Anne was passed in 1710.

Can it be contended, that this common law right, so involved in doubt as to divide the most learned jurists of England at a period in her history as much distinguished by learning and talents as any other, was brought into the wilds of Pennsylvania by its first adventurers. Was it suited to their condition?

In other words, if there are State copyrights, they are not common-law copyrights either, but determined entirely by state statutes. State copyright laws are equally as much "a creature of statute" as Federal copyright law.

Re: Re:

State copyright laws are equally as much "a creature of statute" as Federal copyright law.

Nope. Here's the New York Court of Appeals (the state's highest court) 1n 1872 saying there are non-statutory common law copyrights in :

Whatever rights the plaintiff has in the drama, which is the subject of the controversy, exist at common-law, independent of any statute either of the State or the United States. The protection he seeks is of property, and a right of property which is well established and recognized wherever the common-law prevails, and not of a franchise or privilege conferred by statute. The State courts have jurisdiction, as in other actions affecting common-law rights or property interests. It may be doubtful whether the act of congress of 1831 (chapter 116, section 9, 4th Statutes at Large, 436) gives an action in respect to manuscripts, other than such as may be the subject of a copyright, under the laws of the United States. In Keene v. Wheatley (9 American Law Register, 45), the Circuit Court of the United States had jurisdiction by reason of the citizenship of the parties, and the case was decided by the rules of the common-law and upon the authority of adjudged cases in this country and in England. But if jurisdiction is, by the statute, conferred upon the federal courts in a case like this, the act does not purport to and does not make the jurisdiction exclusive, or deprive State courts of *536 jurisdiction in actions, legal or equitable, touching the common-law rights of authors. At most, the statute gives parties within its provisions, and not claiming the benefits of a copyright under the laws of the United States, a cumulative remedy and a choice of tribunals. The jurisdiction of the State courts in cases in which it had before been exercised, was not taken away or in any respect impaired.

The common-law rights of authors, as now recognized, existed before the passage of copyright laws, and have not been taken away or impaired by those laws. By section 9 of the act of congress of 1831, no new right is secured or conferred, but simply a remedy for the violation of an existing right in another forum. (Pierrepont v. Fowle, 2 Wood & Min., 43; Woolsey v. Judd, 4 Duer, 379.) The objection to the jurisdiction of the courts of the State is not well taken.

Re: Re: Re: Re:

Why do you care so much about trying to rewrite reality and history? What's in it for you? I can understand what the RIAA stands to gain, but what do you?

I'm not trying to rewrite anything. I'm trying to understand the past because it's important that we get it right when using the past to make policy arguments today, which is what we're doing. Mike is of the opinion that copyright is purely an economic regulation, completely devoid of any natural rights origin. I think that's bunk, and there's a rich history of natural rights theory and treatment of copyright as property. If anything, I think Mike is the one trying to rewrite history as he ignores all of the evidence that the Framers held Lockean notions of copyright. My understanding is that they held multiple views, utilitarian and natural, and that copyright is a product of a plurality of views. Mike seems to think that the very Framers whom he admits held Lockean views nonetheless completely eschewed those views when granting authors a statutory right to the fruits of their intellectual labor. I don't think that makes any sense.

Re: Re: Re: Re: Re:

If you want to understand copyright you need to go back before the statute of Anne, and before the printing press. Before printing, copying was a cost to the person or organisation that wanted the copy.
After the printing press, copyright was a license granted by a censor to allow printing and distribution of a work.
See Imprimatur
and Stationers Company
Which are the origins of copyright, and had nothing to do with authors rights, but rather control over what was published.

Re: Re: Re: Re: Re: Re:

Thanks. Yeah, I don't consider those to be the beginning of modern day copyright since that was about licensing and censorship and the like. That's certainly the beginning of a right to copy, but it's not the beginning of modern copyright which is based on utilitarian and natural law theories. Modern copyright is the legitimate offspring of those darker days, no doubt, but I don't see how that's relevant to this discussion.

Re: Re: Re: Re: Re: Re: Re:

The statute of Anne was the Stationers company trying to regain its control over books. They were already paying authors without modern copyright, because manuscripts were the basis of their business. What they were trying to keep was the assignment of books to printer/publishers to prevent competition between printers on individual titles.

Re: Re: Re:

Nope.

Yep. Palmer v. De Witt was talking about the "first publication" right - that is, a property right in unpublished manuscripts. Of course those are private property, because they have not yet been divulged to the rest of mankind through publication; they are still the author's private possession.

Even Wheaton v. Peters acknowledges that this is a common-law right - immediately before they say that a post-publication monopoly is not:

That an author at common law has a property in his manuscript, and may obtain redress against anyone who deprives him of it or by obtaining a copy endeavors to realize a profit by its publication cannot be doubted, but this is a very different right from that which asserts a perpetual and exclusive property in the future publication of the work after the author shall have published it to the world.

The argument that a literary man is as much entitled to the product of his labor as any other member of society cannot be controverted. And the answer is that he realizes this product in the sale of his works when first published.

The paper by Clement et. al. comes under some good criticism by David Post at The Volokh Conspiracy.
As Post says: "As a historical matter, I think they’re dead wrong."..."I also think they’re wrong, on the merits"
Post also observes that this paper appears to be a response to the recent Derek Khanna policy brief published and then withdrawn by the Republican Study Committee. The implication is that Clement is trying to influence originalist members of the GOP into thinking the founders believed in some natural right to intellectual property.
It is therefore well to consider that Thomas Jefferson directly addressed the question of natural rights with respect to what we now call 'intellectual property'.

"If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it."

This explains why I saw an IP maximalist on another site a few days ago arguing the point that copyright was property and they specifically cited the UN's declaration on human rights Article 27.

Of course they ignore the actual wording of the article.

"(1) Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.
(2) Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author."

The first part seems to preclude using copyright to limit the spread of culture and speech, so DMCA takedowns being used to censor speech would be violations of human rights.

The second part specifically states, "of which he is the author," which doesn't seem to be support the concept of transferability of IP. Corporations, not being people, cannot be authors of works. Non-humans cannot hold human rights. So even if copyright were a human right, it wouldn't be applicable to non-human entities, contrary to what Mitt Romney and friends think.

Thus, it's not difficult to conclude from all of this that the authors of the paper did not undertake a scholarly look at whether or not copyright was long viewed as a natural right and thus, as property, but rather that they cherry picked a few quotes out of context, and then pretended those quotes had much more impact than they really did,/b>.

But that is what lawyers do, cheery pick whatever makes their clients look good--then bury the rest.

The foundational premise of Locke's theory is that all people have a natural right of property in their own bodies. Because people own their bodies, Locke reasoned that they also owned the labor of their bodies and, by extension, the fruits of that labor.

This sounds more like the classical argument against slavery rather than copyright--that a person cannot be deprived the right over their own personhood, and by extension, their labor--and thus an argument against the RIAA's enforcement of publishers ownership of their artist.

Who cares about natural rights? The statute is good enough

We've had the statute from the beginning and the constitution pretty much guarantees that there will be some form of it. So who cares about all of this blather about natural rights? It's the typical noise trying to create confusion. In reality, copyright is a relatively stable corner of the law that's endured only a bit of tweaking over the years.

All of the endless debates around here are either about (1) obscure edge conditions or (2) obviously guilty people grasping at straws. But the obscure edge conditions rarely happen. For the most part, if you see someone's intellectual property and you make a copy for others like the file sharing people do, it's clearly infringement. The courts have almost always treated it as such and they will continue to do so.

It's almost always cut and dried even though all of the piracy apologists would like to believe that the courts are somehow going to buy into the looney ramblings and dreams. To whit, look at the success of Napster, MP3.com, Jammie Thomas, Legg Mason and pretty much anyone else who tried to blather on and on about "artificial scarcity" or other interesting but irrelevant theories.

Re: Who cares about natural rights? The statute is good enough

"n reality, copyright is a relatively stable corner of the law that's endured only a bit of tweaking over the years. "

Nope, what was it, been modified at least 16 times in the past thirty years? (Someone give me the correct number please)

"So who cares about all of this blather about natural rights? It's the typical noise trying to create confusion"

Thanks to copyright extensions, no-one knows anymore what is copyrighted and what isn't. I've read posts here about people trying their hardest to stay legal, within the system, only to end up nowhere.

" For the most part, if you see someone's intellectual property and you make a copy for others like the file sharing people do, it's clearly infringement."

And of course with that absolute statement, you ignore situations like me sharing my copies of an MMO game with other players via P2P. The MMO game is "property" of the developer, they have copyright over it, and I'm making copies for others whenever I open up the launcher. So how is it infringement again?

Re: Re: Re: Who cares about natural rights? The statute is good enough

Re: Who cares about natural rights? The statute is good enough

In reality, copyright is a relatively stable corner of the law that's endured only a bit of tweaking over the years.

This is true only if you ignore the dramatic expansions over the past couple of decades.

But the obscure edge conditions rarely happen.

They happen very frequently. Perhaps you just aren't looking in the right places. Look at the world of collage (particularly musical collage) and software development, to name two places where these obscure edge conditions are common.

Re: Who cares about natural rights? The statute is good enough

Not quite. The fundamental distinction is that the Constitution allowed Congress to enact laws with regards to Perceptional Property.

Moreover, your argument that any file-sharing is automatically infringement is clearly incorrect. See, for example, the use of file-sharing by such companies as Microsoft and Blizzard to assist in patching games. Is that automatically infringement?

It is never as cut-and-dried as you think. Otherwise, the RIAA and their ilk would have unerring accuracy in finding actual infringements, which is rarely the case.

Re: Who cares about natural rights? The statute is good enough

And that is only one company can you imagine the real total if we add all the companies in any country?

That seems to fly directly in the face of that ridiculous assertions that the law have very well defined limits and it is obvious to everyone. For something so obvious it sure seems that either people don't see where those limits are and don't understand the law or people just don't give a fuck about that law.

Re: Re: Re: Who cares about natural rights? The statute is good enough

Re: Re: Re: Who cares about natural rights? The statute is good enough

Quote:

It isn't going to cause the end of copyright.

Are you sure?

I can't see any copyright holder being able to pass the laws necessary to effectively "protect" that unnatural property.

Unlike a car a copyright work cannot be fenced or put in a safe place, unlike a car a copyright work cannot be monitored 24/7, unlike a car that have limited reach due to the laws of physics a copyright work have no physical attributes that can be secured, so unless people developed mind reading machines, very intrusive systems to monitor their entire population I am not seeing how copyright can ever survive in its current form, is not like people respect that law anyways, they don't not even the people responsible for producing those laws are capable of respecting it so for all intents and purposes copyright at the public level is long gone or I should say it was never there, on the commercial front though it is possible to enforce it since commercial entities are a government creation and they depend on the government to exist, people on the other hand have no such constraints and therefore are outside of the reach of their governments for the purposes of the law, even more so when they will not help enforce the law as written today against themselves.

Good luck trying to sell granted monopolies to the general population.

Just to prove the point, can you detect anybody, anywhere breaking the law?

I can detect individuals trying to steal a car? can you detect individuals stealing intellectual properties wherever that property is right now?

The obvious answer is no, you can't because unlike real property that has a limited physical space and can be monitored intellectual property cannot and therein lies the problem with the whole concept of intellectual property, for it to exist it must be imposed upon others and it must take away others rights, which will never be welcome by the people who has to give up their own rights and will never obey or fallow such laws.

Re: Re: Re: Who cares about natural rights? The statute is good enough

Slow to enforce the law? So all the kids you sued didn't count?

It's nobody's problem if your enforcement of the law is shabby and useless enough that no one takes it seriously until you tread on the wrong toes. What the hell did they teach you in school? You were allowed to mess up as many times as possible, wreck everyone else's schoolwork until you got it right? Fuck off.

Re: Re: Re: Re: Who cares about natural rights? The statute is good enough

Is it hilarious or sad that the moment I finished reading this I thought "Wow, this article should've had "AJ Bait" as it's headline" and immediately thought after that, "I know someone who's going to have the first comment"?

Although he had the third comment in, but he still showed up with his lawyerly talk and whatnot.

Re:

True, I thought the same thing, but at least so far (as of the time of writing this comment) he's been behaving himself. He's making an argument, citing sources for his position and hasn't made any ad hominems or other kinds of attacks, or made any demands for answers to loaded questions.

If labor is enough to confer property, every pirate is an owner of the things they copy.
Every plagiarist is and owner, every copycat its an owner of his own work which he copied from somewhere applying work.

Does it strike anyone else as ironic to see the RIAA trying to use the constituion as a foundation to their argument when all they usually do is instigating ICE, Congress and & Co. to railroad it whereever possible just to keep their gatekeeper position?

I don't think there's much point in arguing further with AJ on this one -- there's some selective reading going on.

As an aside, Donaldson did guide Wheaton v. Peters, but note that a number of elite legal writers in the nineteenth-century U.S. were terrifically fond of quoting Lord Mansfield and the justices of Millar to support a sort of Lockean natural rights justification for copyright as property.

However, many of these writers failed to acknowledge that Lord Mansfield was overturned in Donaldson. For one influential nineteenth-century example of this sort of revisionist legal scholarship, see Eaton S. Drone, Treatise on the Law of Property in Intellectual Productions (1879) 20-26.

Reading the the above comments, it's obvious that the semester is over.

Wait a minute...

"The foundational premise of Locke's theory is that all people have a natural right of property in their own bodies. Because people own their bodies, Locke reasoned that they also owned the labor of their bodies and, by extension, the fruits of that labor."

Re: Wait a minute...

I kind of like some of their arguments on labor

It might go a long way to narrowing the income gap if we valued labor in the way they present it. Then everyone might be able to afford to pay for music and movies. All we would need is mandatory licensing.